Law deans differ on ethics of advocacy

When Christopher Edley Jr. became dean of the Boalt Hall School of Law at UC Berkeley three years ago, he regretfully gave up his presidential appointment to the U.S. Commission on Civil Rights.

He had been an outspoken civil rights activist as a Harvard law professor, but he believed that as a law school dean he could no longer engage in the same kind of high-profile advocacy.

"The freedom we cherish and defend for the faculty and students is simply not available to a dean or other leader in the same measure," he wrote in an e-mail last week, "because accepting such a position means accepting, for a time, that the needs of the community one serves must be paramount."

The view that a law school dean has to tone down personal opinions was highlighted last week by UC Irvine's controversial decision to rescind the hiring of outspoken Duke University law professor Erwin Chemerinsky as dean of its new law school.

Irvine Chancellor Michael V. Drake said that after hiring Chemerinsky, he changed his mind because he feared the liberal constitutional scholar would be too politically controversial and polarizing to make the transition from teacher to administrator.

Some UC Irvine officials are considering a deal to reverse Drake's decision yet again and rehire Chemerinsky. But attorney Tom Malcolm, a prominent Orange County Republican involved in the discussions, said that would require the professor to "successfully transition from being a very outspoken advocate on many causes to being a dean of the stature that we expect in a start-up law school."

But does being a law school dean automatically mean giving up the academic freedom enjoyed by professors?

Chemerinsky says no.

"The whole point of academic freedom is that professors -- and, yes, even deans -- should be able to speak out on important issues," Chemerinsky wrote in an opinion piece Friday in The Times.

Edley, who backs Drake's decision not to hire Chemerinsky, argues that a deanship requires a moderate public profile, especially for a dean of a publicly funded law school.

"In taking on these responsibilities, one must subordinate a significant measure of autonomy in favor of the interests of the institution," Edley said. "In some respects, this is the antithesis of scholarly freedom and autonomy, and hence these jobs are not for everyone."

Paul Brest, who was dean of Stanford's law school for 12 years, said most deans subordinate their personal views because they speak on behalf of their institution.

"A faculty member has absolute academic freedom and a dean necessarily gives up a lot of it because a dean represents an entire institution," Brest said. "I took very few political positions when I was dean just because I didn't want them confused with the position of the university. Each person chooses his own balance on this."

David Van Zandt, dean of Northwestern University School of Law in Illinois for the past 13 years, said there are two models of deanships: those who are vocal on off-campus and national affairs, and others, like himself, who have decided to limit their public statements to issues of legal education.

"Some deans use the office as a bully pulpit to do things they obviously think are morally right," he said. "When you have a dean from a major law school saying this piece of legislation is wrong or this policy is right, it certainly can have a big effect."

However, he said he avoids that because he represents the entire school -- students, faculty and alumni. "Some people may say I'm a wet noodle with no views at all," he said. "I have strong views, but it is not appropriate in my role to express them."

But not all deans give up their role as advocates.

Robert Pitofsky, a former dean of Georgetown University's law school, said the only limit on a dean's public and political activities should be whether they take up so much time that he cannot properly perform his job.

"Deans remain citizens and ought to have the right to make public statements. You don't lose your rights as a citizen by taking a job like that," said Pitofsky, who was dean in the 1980s before becoming chairman of the Federal Trade Commission in the Clinton administration.

Pitofsky, who remains on Georgetown's faculty, said he did not censor himself during his deanship, including opinion pieces he wrote during that time. "I didn't tell myself to be careful, and nobody gave me a hard time about it," he recalled.

Jeffrey Brand, who is in his ninth year as dean of the University of San Francisco School of Law, said his own politics could be characterized as on the left, but he has not had to sacrifice his personal views to do his job.

The Jesuit law school emphasizes the pursuit of justice and producing ethical lawyers who are concerned about others. When he talks with donors concerned that he is moving the school too far to the left, he said they appreciate the law school's goal of "educating minds and hearts to change the world."